DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, ERNAKULAM

 Dated this the 26^th day of September 2024

Filed on: 26.10.2022

PRESENT

Shri. D.B. Binu                                             Hon’ble President

Shri. V. Ramachandran                                Hon’ble Member

Smt. Sreevidhia T.N                                     Hon’ble Member

C.C. No. 493/2022

COMPLAINANT

Lissa K.G, W/o Aidith K.G. CRA 51A, Kachappally House, Chembokadavu Road, Edappally Toll, Edappally (Post), Ernakulam District. Pin 682 024.

 (By Adv Jeswin .P. Varghese, JESWIN& JASMINE Associates, Room No. 19, Second Floor, Empire Building, Opposite Central Police Station, Ernakulam, Cochin-18, PH No. 9447663410)

V/s

OPPOSITE PARTIES

1. Iha Designs Bridal studio, Anjay Tower, NH 47, Thiruvambadi, Anantha Narayana Puram, Alappuzha -1, Pin 688001; Represented by its Proprietor Nooha Sajeevb.
2. Noah Sajeev, Proprietor, Iha Designs Bridal studio, Anjay Tower, NH 47, Thiruvambadi, Anantha Narayana Puram, Alappuzha -1, Pin 688001.

(OP 1 & 2 rep. By Adv Dileep Rahman,Roo No. 11, Muncipal Satram, Opp. District Court, Alappuzha, email. FINAL ORDER

D.B. Binu, President

1. A brief statement of facts of this complaint is as stated below:

The Complainant filed under Section 35 of the Consumer Protection Act, 2019. The complainant, a teacher by profession, placed an order for a stitched churidar from the opposite party, an online fabric retailer, on 15.09.2022, transferring Rs. 1,395/- to their account. Shortly after placing the order, the complainant requested a change in the colour of the item but received no response from the opposite parties despite their online presence. The following day, the opposite parties refused to accommodate the change. Consequently, the complainant attempted to cancel the order, but the opposite parties denied this request as well.

The complainant then requested that the payment be kept as credit for future purchases, which the opposite parties also rejected. Despite stating that the product had already been dispatched, it was discovered that the consignment was only shipped on 17.09.2022, as evidenced by the courier details.

When the complainant received the consignment on 18.09.2022, it was found to be of the wrong size and did not meet the specified requirements. The complainant returned the item on 22.09.2022, but the opposite parties sent it back without issuing a refund or providing any redress.

The complainant claims that the opposite parties engaged in unfair trade practices, causing her financial loss and hardship. She seeks a refund of Rs. 1,395/- with 12% interest from 15.09.2022, compensation of Rs. 5,000/- for deficiency in service, and Rs. 5,000/- as costs of the proceeding.

2. NOTICE:

The Commission issued a notice to both opposite parties. However, the opposite parties failed to file their version within the statutory period and were consequently set ex-parte.

3. Evidence:

The complainant submitted a proof affidavit along with four documents. The documents in the complaint are marked as Exhibits A1 and A4.

• Exhibit A1: True copies of screenshots of WhatsApp communications between the complainant and the opposite parties, showing the discussion regarding the order, cancellation request, and the responses from the opposite parties.
• Exhibit A2: A true copy of the postal receipt dated 22.09.2022, evidencing the return of the material by the complainant to the opposite parties via registered post.
• Exhibit A3: A true copy of the envelope received by the complainant, indicating the details of the consignment returned by the opposite parties after the complainant sent it back.
• Exhibit A4: A true copy of the receipt for the payment of Rs. 1,395/- to the opposite parties via Google Pay, dated 15.09.2022.

4. Points for Consideration:

i) Whether the complaint is maintainable or not?

ii) Whether there is any deficiency in service or unfair trade practice by the opposite parties?

iii) If so, whether the complainant is entitled to any relief?

iv) Costs of the proceedings, if any?

5. ARGUMENT NOTES FILED BY Mr. JESWIN P. VARGHESE, COUNSEL FOR THE COMPLAINANT

1. The complainant, a teacher by profession, placed an order for a stitched churidar with the opposite parties, who are engaged in online marketing of fabric items for ladies. The 1st opposite party is the firm, and the 2nd opposite party is its proprietor.
2. On 15.09.2022 at 9:04 pm, the complainant placed the order and transferred Rs. 1,395/- to the bank account available on the opposite parties' website.
3. Shortly after, at 9:26 pm, the complainant requested a colour change for the churidar due to dissatisfaction with the original choice. However, the opposite parties did not respond, despite being online.
4. The following day, on 16.09.2022 at 3:54 pm, the opposite parties replied that the change was "not possible."
5. Left with no other option, the complainant cancelled the order at 6:12 pm on 16.09.2022. The opposite parties replied with "sorry" at 6:55 pm.
6. The complainant then asked them to keep the payment as credit for a future purchase, but the opposite parties again responded "sorry" at 7:29 pm.
7. Despite repeated voice messages from the complainant requesting the amount to be credited, the opposite parties informed her on 17.09.2022 at 3:10 pm that the product had already been dispatched. However, this was false, as the consignment was only shipped at 9:14 pm on 17.09.2022, proven by the timestamp on the envelope received by the complainant (Exhibit A1: WhatsApp communications and Exhibit A3).
8. Upon receiving the consignment on 18.09.2022, the complainant found the churidar size to be incorrect, with a top length of only 45½ inches and an undersized bottom. These measurements did not match the order requirements, making the fabric unusable by the complainant (Exhibit A1).
9. The complainant returned the material by registered post on 22.09.2022, as evidenced by the postal receipt (Exhibit A2). The opposite parties received the returned parcel on 24.09.2022, but instead of resolving the issue, they sent it back to the complainant via courier (Exhibit A3: Copy of the envelope).
10. Despite the complainant cancelling the order within a reasonable time and requesting the amount to be kept on credit, the opposite parties wilfully rejected her requests, thus engaging in unfair trade practices.
11. The opposite parties failed to file their version within the time limit and were set ex parte by the Commission on 29.12.2023.
12. It is therefore prayed that the Commission direct the opposite parties to refund Rs. 1,395/- to the complainant with 12% interest from 16.09.2022, pay Rs. 2,000/- as compensation for deficiency in service, and award Rs. 2,000/- towards costs.

                          The evidence presented included an ex-parte proof affidavit filed by the complainant, and it was unchallenged by the opposite parties. Therefore, the complainant's claims were considered credible and supported by the evidence. The opposite party’s conscious failure to file their written version despite having received the Commission’s notice amounts to an admission of the allegations levelled against them. The case of the complainant stands unchallenged by the opposite parties. The Hon’ble National Commission held a similar stance in its order dated 2017 (4) CPR page 590 (NC).

                    We have carefully considered the submissions made by the complainant and as well as reviewed the entire evidence on record, including the argument notes presented by the complainant.

i). Maintainability of the Complaint

The complainant placed an order with the opposite parties for a churidar and made payment via Google Pay (Exhibit A4), which satisfies the definition of "consumer" under Section 2(7) of the Consumer Protection Act, 2019. The complaint is maintainable as the opposite parties, engaged in online marketing, fall under the purview of "service providers,".

ii). Deficiency in Service and Unfair Trade Practice

The opposite parties’ refusal to accommodate the complainant’s request for a colour change, failure to cancel the order after confirmation, and subsequent dispatch of the product despite repeated requests for cancellation amount to both deficiency in service and unfair trade practice under Sections 2(11) and 2(47) of the Consumer Protection Act, 2019. The delivery of a churidar that did not meet the complainant’s specifications further demonstrates a clear deficiency in service. These sections apply to the opposite parties’ refusal to accommodate the complainant’s request for a change in the order, misrepresentation regarding the dispatch of the product, and failure to provide adequate redressal, constituting both a deficiency in service and an unfair trade practice.

The delivery of a churidar that did not meet the complainant’s specifications further demonstrates a clear deficiency in service.

The complainant's evidence, including WhatsApp communications (Exhibit A1), the Google Pay receipt (Exhibit A4), and the postal receipt (Exhibit A2), substantiate her claims that the opposite parties acted in bad faith by dispatching the product after refusing to honour her cancellation request.

The deliberate non-compliance and refusal to meet reasonable consumer expectations constitute a deficiency in service. Similarly, the opposite parties in the present case wilfully disregarded the complainant’s cancellation request and wrongfully shipped the product.

Liability of the Opposite Parties

The opposite parties are responsible for the grievance caused to the complainant due to their refusal to entertain her requests for a colour change, cancellation, or keeping the amount on credit. Their actions amount to negligence and a deliberate disregard for consumer rights. A service provider’s failure to rectify its services or provide timely redress results in liability under the Consumer Protection Act.

Furthermore, Government Order (P) No. 60/07/F, CS and CA, dated November 3, 2007, explicitly mandates that cash memos and bills must not include any terms or declarations that state, "Goods once sold will not be taken back or exchanged." This prohibition is put in place to safeguard consumer rights and ensure fair trade practices.

Non-compliance with this directive constitutes a violation punishable under the Consumer Protection Act as it amounts to an unfair trade practice. Such declarations are misleading, deprive consumers of their legal rights, and falsely suggest that they cannot seek redress for defective or substandard goods. Therefore, the stand taken by the opposite parties in this case further strengthens the complainant’s claim of unfair trade practice.

4. Negligence and Fraud

The opposite parties falsely claimed to have dispatched the item at 3:10 pm on 17.09.2022, when, in fact, it was only dispatched later that evening at 9:14 pm (as per Exhibit A3). This false representation constitutes negligence and fraud under Section 2(47) of the Act.

iii and iv). Relief to the Complainant and Costs of Proceedings:

The complainant is entitled to relief as the opposite parties acted in bad faith, caused mental agony, and demonstrated gross negligence. The opposite parties’ actions led to financial loss, hardship, and mental distress.

We find that issues (i) to (iv) also favour the complainant, as they arise from the serious deficiency in service on the part of the Opposite Parties. The complainant has experienced significant inconvenience, mental distress, hardships, and financial losses due to the deficient service and unfair trade practices committed by the Opposite Parties.

In view of the above facts and circumstances, we hold that the first Opposite Party is liable to compensate the complainant.

Therefore, the prayer is allowed as follows:

1. The Opposite Parties shall refund ₹1,395/- (Rupees One Thousand Three Hundred Ninety-Five Only), the purchase price paid by the complainant for the churidar, as evidenced by Exhibit A4.
2. The Opposite Parties shall pay ₹2,000/- (Rupees Two Thousand Only) as compensation for the deficiency in service and unfair trade practices. This amount is awarded for the mental agony and physical hardships endured by the complainant due to the Opposite Parties' actions.
3. The Opposite Parties shall pay ₹5,000/- (Rupees Five Thousand Only) towards the cost of the proceedings.

The Opposite Parties are jointly and severally liable for the fulfilment of the above orders. These orders must be executed within 30 days from the date of receiving this order. Failure to comply with the payment orders under points I and II will result in an interest rate of 9% per annum from the date of filing the complaint (26.10.2022) until the date of full payment realization.

Dated this the 26^th  day of September, 2024

Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me, and pronounced in the Open Commission.

Shri. D.B. Binu

Hon’ble President

Shri. V. Ramachandran

Hon’ble Member

Smt. Sreevidhia T.N

Hon’ble Member

APPENDIX

• Exhibit A1: True copies of screenshots of WhatsApp communications between the complainant and the opposite parties
• Exhibit A2: A true copy of the postal receipt dated 22.09.2022
• Exhibit A3: A true copy of the envelope received by the complainant
• Exhibit A4: A true copy of the receipt for the payment of Rs. 1,395/- to the opposite parties via Google Pay, dated 15.09.2022.

Date of Despatch

By Hand      ::

By post        ::

AKR/